News and views about legal academia and the legal profession by Brian Leiter (University of Chicago) and Dan Filler (Drexel University)

December 31, 2010

The Best of 2010 Roundup

UPDATE: Eugene Volokh is true to form (discussing the "ethics" of publishing legal correspondence does not require referring by name to a deranged cyber-stalker, but of course Volokh does), but some commenters actually make relevant responses (and here). Tedious, but typical of Professor Volokh.

*Anyone who doubts the power of this blog (I know you're out there, and you will be smitten in due course!), take note: a blog post in the dog days of summer on "empirical legal studies" has now resulted in an actual scholarly article in rebuttal! The author is Cornell's Ted Eisenberg, intellectual leader and innovator in empirical studies of the legal system, and the only "concerns" about ELS to which he responds are those in my blog post (see p. 7 of his article). Professor Eisenberg makes the utterly shocking allegation that "blog posts...often constitute unreflective, on-the-spot reactions provided to promote or provoke discussion," but we shall put that startling revelation to one side. The truth is I've reflected a lot about ELS, over the course of dozens of hours of job talks and workshops by ELS scholars over the past five years. Professor Eisenberg misunderstands, alas, my worry about the "skill level" of ELS scholars: no one doubts that many ELS scholars have strong empirical, statistical, and experimental skills, of the kinds one would expect from PhDs in various social science disciplines. (The epistemic robustness of these social science fields is a separate question, but we shall also bracket that issue.) My claim was that the,

analytical- and discursive-skill level of ELS scholars appears to be, on average, low, or at least lower than the typical law & economics or law & philosophy interdisciplinary scholar of yesteryear. This isn't surprising, given that the genre rewards technical skills related to number crunching and data analysis, as well as research design, rather than smarts on your feet, the ability to draw conceptual distinctions, or construct and deconstruct arguments. But the latter intellectual skills are the ones needed in law, both in thinking about law and in teaching law, not the former. Perhaps this is also why discussion of empirical papers typically follows the same tedious pattern of wondering how one controls for this-or-that variable, with the presenter showing, cleverly, how s/he already controlled for it, or admitting that s/he didn't, so that this is an issue for future work, etc.

Analytical and discursive skills ("smarts on your feet, the ability to draw conceptual distinctions, or construct and deconstruct arguments") are different intellectual skills than experimental design and statistical analysis. But analytical and discursive skills are the ones we are honing in our students from the first year of law school onwards, and they are the skills that law professors need if they are to discharge their tasks. This is why economists and philosophers fit so naturally into the law school world, because both disciplines require those kinds of intellectual skills. To be sure, the high end of ELS scholars--like the Cornell folks, or my colleagues Malani and Miles--are both skilled in social scientific techniques and analytically acute and discursively agile. But the parade of over-sold ELS job candidates who are sometimes neither, and rarely both, is long indeed.

*Summer also brought an informative thread with comments about VAPs, Fellowships, and other information for those interested in academic careers. Students who missed it may want to check it out. This post from later in the year is also relevant to prospective law students with a possible interest in law teaching.

*When The National Law Journal profiles five lawprof bloggers, you know law blogging has gone mainstream--but most striking was that my description of Eugene Volokh's blogging style as "passive-aggressive" struck a chord with a number of readers (as one Harvard professor wrote me: "les mots justes"). The aptness of the characterization dawned on me about five years ago (if readers will forgive a slight but perhaps interesting tangent). Briefly: a mentally ill individual, with what turned out to be a long history of harassing those against whom he had grievances, real or imagined, created a blog devoted to insulting, defaming, and harassing me (and my wife, my children, my parents, and anyone who reminded him of me!) and initially appropriated my name for the URL address in order to drive traffic to his ‘hate blog’. (The blog is now defunct.) After consulting with my colleague Mark Gergen about the law, I e-mailed the blog service provider that this was a tortious misappropriation of my identity (the URL was then changed). That would have been the end of the matter, except the proprietor of that service forwarded my e-mail to Volokh, who--unbelievably!--decided to post my letter on his blog, linking as well (and thus giving newfound publicity) to the vicious hate blog of the disturbed individual. Talk about creepy, malicious behavior under the guise of discussing a legal question! It didn’t take much judgment to determine that the author of the hate blog was out of his mind (the repeatedly expressed wish to “make Brian Leiter cry like a baby” might have been a hint), nor did it occur to Volokh that perhaps my private letter to the service provider was not a fit subject for his commentary in a public forum. A true tour de force of passive-aggressive blogging!

*And, in any case anyone missed it (it was right before the winter break), do check out Google's new toy.

So what will 2011 bring? I'll be honest, I've been thinking about retiring the law blog, even though it's nice to know that if I want to communicate with every law school Dean in America, all I have to do is post on this blog. The main issue is time, and whether this is time well-spent. In philosophy, faculty moves are of great significance for prospective students, but in academic law, it is rare that a faculty move matters as much for prospective students. So while there's no doubt other law profs are interested in this information, it's less clear that it serves an important practical purpose for students, and law faculty can increasingly satisfy their curiosity via other blogs. Sometimes there are issues in the legal academy where the blog can play a useful role--Chemerinsky and Irvine comes to mind as an example. I often hear that the blog is helpful to those thinking about academic careers, and that's gratifying. The loyal and high-quality readership, and the interesting correspondence and feedback they generate, has been the biggest motivator, and so we'll keep slogging along for now, and see how things look at the end of 2011.

December 30, 2010

In Memoriam: Eric Schmertz

Eric Schmertz, the former dean of Hofstra Law School, passed away last week. He was 84. Schmertz was one of the five founding members of the Hofstra law faculty, appointed in 1969. In 1982 he was named dean of the law school and served in that capacity for seven years.

December 29, 2010

They weren't good enough for the American Academy of Arts & Sciences

The AAAS has now put on-line a list of all its members since its founding, searchable by subject. The omissions in the "Law" category are just breathtaking--they include such giants of law and legal scholarship in the 20th-century as Karl Llewellyn, Leon Green, Jerome Frank, Milton Handler, William O. Douglas, W. Page Keeton, John Henry Wigmore, and William Prosser. (Antipathy towards legal realists seems to be playing a role here, though doesn't explain all the omissions.) This is probably a worse track record of misses than even the Nobel Prize in Literature's!

December 27, 2010

Waldron Receives Phillips Prize in Jurisprudence from American Philosophical Society

Jeremy Waldron, University Professor at NYU and Chichele Professor of Social & Political Theory at Oxford, is this year's winner of the Phillips Prize in Jurisprudence (broadly construed). A list of past winners is here.

December 24, 2010

Penn's Wolff on the Repeal of "Don't Ask, Don't Tell"

December 23, 2010

Announcing the New Dean Three Days Before Xmas When No One Is Around Actually Is *Not* Normal...

...but that's what DePaul University has done. The new Dean is Gregory Mark, from Rutgers University at Newark. Now why the odd timing? Blog Emperor Caron suggests it is because most of the faculty preferred an inside candidate, not Professor Mark. That's a pretty plausible hypothesis under the circumstances, and given the generally high-handed misconduct of the DePaul Administration in this and other matters. That being said, Blog Emperor Caron is getting a bit carried away, since Professor Mark and the inside candidate were both voted as "acceptable" by the faculty, and it is really not that uncommon for a University Administration to choose among the candidates approved by the faculty, without regard to the faculty's rank ordering. It would have been prudent, of course, for the DePaul Provost to have deferred to the faculty preference in this instance, given the sordid history, but Provost Epp is not notable for his prudence or his judgment. As Caron notes (and as we expected), several DePaul faculty are weighing outside offers. Incoming Dean Mark will have his work cut out for him, to put it mildly.

December 22, 2010

Former Maryland Law Dean Returns $300K Bonus

Former Maryland law dean Karen Rothenberg agreed, today, to return $300,000 in bonus money to the State of Maryland. The Attorney General concluded that she had received the money improperly - although for no fault of her own. I discuss this matter in more detail over at the Faculty Lounge.

Nonsense in Cyberspace Watch

A student just forwarded to me a discussion thread from "Top Law Schools" in which someone claiming to be a law professor (and apparently was believed to be a law professor by the students asking question) posted the following:

To most professors, Georgetown is far more prestigious than, say, Duke or Michigan because of its location and (because of its location) it attracts many more heavyweight scholars than the more isolated schools.

The Internet: it's still the nonsense and misinformation superhighway!

December 21, 2010

Law Profs Win Huge Punitive Damages Against West Publishing

Late last week, David Rudovsky, a Senior Fellow on the Penn Law faculty, and Len Sosnov, Professor of Law at Widener, won a $5 million dollar punitive damages verdict in a defamation case against West Publishing. This from the Philadelphia Inquirer:

In 1991, West published their Pennsylvania Criminal Procedure: Law, Commentary and Forms. A second edition was published in 2001, and the men provided annual updates tracking changes in criminal court procedures. But in 2008, West wanted to pay them only $2,500 each, so the two men ceased work on the addendum. Nevertheless, West published an update bearing Rudovsky and Sosnov's names on the title page. The professors sued, contending that an inferior product - only three new cases were cited - damaged their professional reputations.

The Federal jury which issued this verdict awarded each man $90,000 in actual damages and $2.5 million in punitives - a juicy 28 to 1 ratio. We can fairly assume that there will be a remittitur in this case, given those numbers. But the case itself is interesting. Apparently, the professors' contract allowed West to issue updates under their names if the authors wouldn't agree to produce them. Consequently, this case was simply about whether the $50 update was such a sham - in this case, the company added only three new cases (compared updates prepared by the authors which typically added 150 new cass) - that the authors' reputations were badly harmed. Apparently, the jury was convinced that they were.

How many of us are wondering whether we have $2.5 million dollars of academic reputation to damage? (I know, I know...these were punitives.)